Northern District of Georgia, No. C87-1517A - Witnesses - Hamilton, Deputy
Working File
August 1, 1987

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Brief Collection, LDF Court Filings. United States v. Falk Brief on Motion to Quash Subpoena, 1971. 129ca463-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9746e1c5-1881-42c7-8a79-aa810c64ad67/united-states-v-falk-brief-on-motion-to-quash-subpoena. Accessed April 27, 2025.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA V. NO. E.B.D. 71-165 JOHN DOE (IN RE GRAND JURY SUBPOENA: RICHARD FALK, WITNESS) BRIEF ON MOTION TO QUASH SUBPOENA JACK J. LEVINE, ESQUIRE 1427 Walnut Street Philadelphia, Pennsylvania 19102 215-563-1388 THOMAS G. SHAPIRO, ESQUIRE 73 Tremont Street Boston, Massachusetts 02108 617-227-8420 FILED: September, 7, 1971 TABLE AND SUMMARY OF CONTENTS PAGE I. STATEMENT OF QUESTIONS PRESENTED IV II. PRIOR PROCEEDINGS III. SUMMARY OF THE RECORD BEFORE THIS COURT ON THE FIRST AMENDMENT ISSUE A. Introduction B. Richard Falk's scholarly activities relating to the Vietnam War are uniquely dependent upon his access to information which would not be available to him but for the extraordinary trust and confidentiality which has attached to his past professional activities. C. Notwithstanding his other professional roles^his role as a journalist, including television other media activities, itself is central to his professional activities and public value. D. An equally significant scholarly function flows from his sustained and frequent advisory contacts with members of the United States Congress, and the confidentiality and trust attached thereto. E. His role as a legal scholar, and as an expert legal consultant and witness with regard to judicial proceedings involving the legal aspects of the Vietnam War depend crucially on his confidential and intimate familiarity with, and access to,the subject matter of this grand jury investi gation, and his public value to our judicial system in this capacity is arguably more important than whatever marginal value he may serve as a grand jury witness. 11 13 F. Movant's mere appearance before this grand jury, coupled as it is with no showing of compelling and overriding governmental interest, will provide no benefit to the grand jury and will irreparably interfere with his own professional activities and similar activities by others. 15 a. Activities such as Movant's, in all pf his abovementioned roles, provide an indispen^ble and unique public value, which value is premised upon absence of governmental intrusion. 15 b. A condition precedent to Movant's mere appearance should be a showing by the government of compelling and overriding national interest. 17 IV. ARGXJMENT 19A I. The Professional And Public-Educational Activities Movant Seeks To Preserve Are Protected By The First Amendment Against Governmental Intrusion. 19a A. Movant's journalistic activities, because they are primarily concerned with the subject matter of the Pentagon Papers, fall within the scope of Caldwell v. United States. 434 F.2d 1081(1970), cert. granted 91 S. Ct. 1616(1971). 20 B. Notwithstanding the applicable scope of the journalist privilege. Movant's activities as a professional scholar and author are themselves cognizable under the First Amendment, and, as such, are entitled to the parameters of protection established by Caldwell, supra. 21 C. Movant's professional activities are protected against this grand jury's intrusion unless and until the Government demonstrates a national interest so compelling, overriding, and unique to Movant that it outweighs the public worth of his own and similar protected pursuits. 29 1 1 D. In the absence of compelling and overriding need. Movant may not be compelled to appear before the grand jury at all, as there is no testimony he could give which would not be within the bounds of the protective order required under the rule of Caldwell, supra. 41 II. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) and/or 18 U.S.C. Sections 2510(11), 2515, 2518(10) and 3504 Require The Government To Affirm Or Deny The Use Of Wiretap And/Or Other Electronic Surveillance Upon The Allegation By A Grand Jury Witness That Such Surveillance Has In Fact Occurred 45 III. CONCLUSION 46 111 QUESTIONS PRESENTED Richard Falk is a nationally and internationally known scholar and author whose studies of the nature and legality of the Indo-China War are authoritative in the field. His recognizedly pre-eminent activities as journalist, author and lawyer, as they relate to the war, are uniquely and crucially dependent on the trust and confidentiality which has attached to his efforts to secure accurate and complete information, as well as write, counsel and consult with others. The excellence of his work would not have resulted, nor will it continue, but for these relationships, and that excellence has at once been the source of, and impetus to, the consultation with him by others. Therefore, the first issue before this Court is: WHETHER, CONSISTENTLY WITH THE FIRST AMENDMENT, A PROFESSIONAL SCHOLAR AND AUTHOR-JOURNALIST MAY BE COMPELLED TO APPEAR AND TESTIFY BEFORE A GRAND JURY WHERE THE UNQUESTIONED EFFECT OF HIS APPEARANCE WILL BE TO INFRINGE UPON AND DESTROY CONFIDENTIAL ASSOCIATIONS AND RELATIONSHIPS WHICH ARE INDISPENSABLE TO THE QUALITY, ACCURACY AND CONTINUED EXISTENCE OF HIS WRITING AND OTHER PROFESSIONAL PUBLIC-EDUCATIONAL EFFORTS In addition, Richard Falk has moved to quash his subpoena on the grounds that he has allegedly been the object of unlawful wiretap and/or other electronic surveillance. The second question is therefore: IV WHETHER A GRAND JURY WITNESS HAS STANDING UNDER 18 U.S.C., SECTIONS 2510(11), 2515, 2518(10) and 3504 AND/OR SILVERTHORNE LUMBER CO. v. UNITED STATES. 251 U.S. 385(1920) AND ITS PROGENY, TO DECLINE TO APPEAR BEFORE A GRAND JURY ON THE GROUNDS THAT HIS SUBPOENA, OR THE QUESTIONS TO BE PROPOUNDED TO HIM, FLOWED DIRECTLY OR INDIRECTLY FROM UNLAWFUL WIRETAP AND/OR OTHER ELECTRONIC SURVEILLANCE. V I. PRIOR PROCEEDINGS On Monday, August 16, 1971, Richard Falk was subpoenaed to appear before a federal grand jury then sitting in the District of Massachusetts. This subpoena was made returnable on Friday, August 20, 10:00 A.M. On the morning of August 20, Professor Falk filed with this Court a motion to quash this subpoena, at the same time requesting that his appearance be stayed pending the filing of affidavits and brief, and argument thereon. A stay pendente lite was granted by this Court on August 20, and the matter set down for argument on September 10, 1971. This Court also provided that such affidavits as the witness and the government saw fit to submit would constitute the record in this case, without further live testimony being required. 1. Professor Falk is Albert G. Milbank Professor of International Law and Practice at the Woodrow Wilson School of Public and International Affairs, Princeton, N.J. He also is a Research Associate and Member of the Advisory Committee of the Center of International Studies, which is an adjunct to the Woodrow Wilson School. He is a member of the Bar of the State of New York and of the International Court of Justice, the Hague, Netherlands. His Vita, as it is directly relevent to the issues here raised, is attached hereto as Exhibit A(l). II. SUMMARY OF THE RECORD BEFORE THIS COURT ON THE FIRST AMENDMENT ISSUE A. INTRODUCTION The record upon which Movant will rely consists of a series 2 of twenty-six affidavits, both his own and of others. His affidavit is of course the keystone of the record, and reference to it will be made in conjunction with references to those of the supporting affidavits which either testify to the verity of the Falk affidavit or lend particular credence because the affiant's own experiences and concerns parallel those of Falk. Because Movant functions in a variety of professional roles, all of which we contend are protected by the First Amendment, there will of necessity be some overlap in the summation of the record. Briefly stated, his contentions are threefold: First, 2. These affidavits have been collated, paginated, and filed with the clerk of the Court, to be made part of the record in these proceedings. Each affidavit has been given a letter designation, and this record has been paginated serially. References to this record will be made by the name of the affiant, the exhibit letter of his affidavit, and the page number of the reference (e.g. Falk, A, p.lO). Where relevent, the pro fessional capacity of the affiant will also be summarized. It should be noted, as the Court is already aware, that these affidavits were prepared with great haste, and that because a number of those solicited for affidavits were on vacation (particularly members of Congress) Dr. Falk was often unable to immediately locate them. See Falk, A, p.22. This brief has been prepared on the basis of those affidavits in hands by August 31, 1971. In the event that more material arrives, it will be filed with the Clerk by September 10 and referred to during oral argument. - 2 - that his professional performance, particularly as it relates to the same subject matter covered by the "Pentagon Paperŝ " has uniquely depended upon the use of information lathered from confidential sources; Second, that others believe the absence of such sources would severely damage his professional effectiveness in this narrow area; and Third, that mere appearance by him before this particular grand jury would unquestionably inflict the kind of damage referred to. See Falk, A, pp. 1-2. B. Movant's Scholarly Activities Relating To The Vietnam War Are Uniguelv Dependent Upon His Access To Infoirmation Which Would Not Be Available To Him But For The Extraordinary____ Trust And Confidentiality Which Has Attached To His Past Professional Activities. The work product of Richard Falk's activities, particularly as they relate to the Vietnam War, are, under any measurement standard, truly extraordinary. Continual testimony to this exists throughout the 3 record, and his own affidavit impressively recites the s\am total of these efforts. The record is replete with testimony that this uniqueness 3. E.g. Richard J. Barnet, Co-Director of the Institute for Policy Studies in Washington, D.C.: "He is one of the country's outstanding students of international law and the leading expert on the legal aspects of the Indo-China War. He plays an almost unique role as unofficial advisor, scholar, and journalist, combining a comprehensive knowledge of law and a sophisticated understanding of the relevent facts surrounding United States involvement in Indo-China." Barnet, B, p. 29 - 3 - is at once the sourcefor, and impetus to, consultation with him by other 4 professionals, and that, as Movant himself recites, at length, these consultative and advisory roles are central to his professional standing. 4. "We...have continually called upon his seemingly unexhaustible services as a resource pegsgn, as program advisor, and as a consultant in points of intemaltional/ domestic law, particularly as they relate to the Vietnam War. His access to a wide variety of materials, studies and documents contribute jtowjLrd his rare eclectic approach to contemporary problem solving. . ./Hi_s/writings and lectures are sought after by individuals and groups nationwide, in the Congress of the United States and at international conferences." Knopp, C, p. 3CL "His services as a professional consultant and resource expert have been essential to our own understanding of issues ...". Mea.cham, D, _p̂ 31. "Professor Falk is one of the very few experts in such /War relate^ mattery to whom we have wished to turn." Lauter, E, p. 32 . "His contributions /to the conferences and seminars sponsored by the Fund for New Priorities in Americ^ were perhaps the major reason for the impact of our efforts." Meyers, F, p. 34 . "He is one_of 24 elected Council members of /the Federation of American Scientist^ and is a valued source of advise to us; his high, unique, and unblemished reputation makes him a "special asset". Stone, G, p. 35-36. - 4 - There can be no doubt that, as Movant testifies, his 5 extensive writing and lecturing on America's involvement in the Vietnam war has depended upon his access to real facts, or, he describes, "the real state of affairs". Falk, A, 3. "In essence, this scholarly role has depended upon getting at the real facts wherever possible". Falk, A, 3. That the range of his contacts in ferreting out the truth encompasses 6 a wide variety of political opinion is supported by the record, as is the fact that this unique ability to deal with both sides of the political spectrum has enhanced his reliability amongst those who consult 7 him. 5. A partial catalogue of these writings is set forth at Falk, A, pp.4-5, 10-11. See also Falk Vita, Exhibit A(l). 6. E.g. Harold Feiveson, presently lecturer in the Woodrow Wilson School of Public and International Affairs, Princeton University, and formerly an analyst for the United States Arms Control and Disarmament Agency:"Professor Falk is one of the very few persons I know of with wide contacts both among vigorous opponents of American defense policy and among present and past members of the government who apply a more marginal and restrained criticism to American foreign policy. He therefore brings to his writing and advice an unusually broad perspective and an intimate familiarity with the positions and attitudes of several diverse groups, a capacity that I and many of my colleagues have found very useful." Feiveson, H, p, 39 7. "As a particular example, I was importantly influenced, while in the Arms Control and Disarmament Agency and engaged in policy analysis of the Non-Proliferation Treaty, by Professor Falk's articulation of the special attitudes of the underdeveloped countries toward international security". Feiveson, H, p. 39 . "He has been an invaluable consultaht and source of ideas, not least of all because his many contacts provide him with a deep and broad knowledge of world affairs that enables him to be an excellent judge of the merits of attempts by scholars to understand and interpret current issues and events." Thatcher, I, p. 40 - 5 - Central to the scholarly effort of seeking information about the War, and central to the First Amendment claim here made, is the need for absolute confidentiality and the trust and confidence built thereupon. Two of the supporting affidavits before this court, one written from the vantage point of book editor and the other from that of a noted scholar and published author, focus directly on Movant's beliefs in this regard: Sanford G. Thatcher, Social Science Editor, Princeton, University Press: "Many books today that deal with matters of immediate national and international concern could not have been written at all without the use of information obtained through private interviews and other confidential communications and this is perhaps pre-eminently the case with investigations of the Vietnam War and related issues which Professor Falk has chosen as one of the primary focuses (sic) of his professional re search." Thatcher, I, p. 40 . (Emphasis supplied). Ronald Steel, journalist, author, teacher, and Member of the Council on Foreign Relations: "In order for either a scholar or a writer to conduct his role with integrity and efficiency, it is absolutely essential that he feel free to discuss matters of public interest with various individuals who may, for various reasons, not wish their remarks to be quoted publicly. The quest for truth relies upon trust and access to information which may not be generally available to the public. Not uncommonly, individuals, whether in private life, government or business, seek to conceal wrong doing, and it is the role of the responsible scholar or journalist to ferret out the truth. To do so he must often seek sources of information which would remain closed to him were he not able to guarantee that they would be entirely confidential." Steel, J, p. 41 • Emphasis supplied. 8. Falk's own affidavit focuses repeatedly on this need for confidentiality. - 6 - 8. At p. 3: "My understanding of such complex and controversial current developments has depended upon having access to confidential in formation and to various individuals in and out of government who would not be able to discuss this sensitive subject matter with me if they thought that I might be compelled to disclose it in the course of an investigation of this type"; "Again, my sources of information depended really upon an assurance on my part that the discharge of this professional role would not be subject to the sort of scrutiny that is involved in a proceeding of this type whose focus is upon how information relating to the war was acquired." "Here, too, my capacity to report truthfully and effectively depends upon maintaining contact of a confidential sort on all sides." At pp.4-5 Falk lists twenty (20) examples of his recent writings which have "relied upon confidential information to inform its presentation." At pp.9-10: "...my role as journalist and participant in community affairs has depended on similar access to confidential information relating to the war"; "As with any journalist, my success has depended on building up and maintaining confidential sources of information and of convincing editors that I have things of value to write about," citing examples and and listing at pp. 10-11 examples of journalistic writings. At p. 10, with explicit reference to the subject matter of this grand jury: "I was invited (but declined) to participate_in an informal Congressional conference devoted to /the Pentagon Paper^ and have been asked by the weekly magazine Commonwealth to do a book review of the Pentagon Papers. American Report, and several national newspapers and magazines (New York Post, Philadelphia Inquirer, Time) invited my comment on the disclosure of the Pentagon Papers when they became public. In each of these settings my value as an interpreter of the news depended on my access to information and on my reputation for confidentiality." Other assertions of this need for confidentiality and trust, with specific examples, can be found on virtually every page of Falk's affidavit. - 7 - as do virtually all of the other affidavits furnished in support of 9this contention. 9. E.g. "His professional contributions depend crucially upon his access to confidential sources of information. Because of his reputation for discretion he is able to talk regularly with individuals whose cooperation is essential to an informed professional understanding of the crucial problems with which Professor Falk is concerned as scholar, lawyer, and journalist." He has been able to play his "invaluable role...only because of the confidential character of the sources he has developed." Barnet, B, p. 29 . (Emphasis supplied) "On the basis of intense involvement in the fields of international relations over the past fifteen years, it is my firmly held judgment that responsible scholars and journalists must have access to information where representations that confidentiality concerning the source of this information is of paramount consideration in eliciting it." Mendlovitz, K, p. 42 . Emphasis supplied. Perhaps the most dramatic example of the need for confidentiality, and the extraordinary trust which Falk enjoys because of his ability to preserve it, were his successful efforts to arrange the participation in American television debates of the Paris negotiators for the Democratic Republic of Vietnam and the Provisional Revolutionary Government. See Teicholz, McGhee, and Cook, L, M and N, at pp, 44-51 ; and sections dealing with Falk as journalist, infra, pp. 9-10 . Likewise, with regard to his successful efforts to arrange private talks between these Paris negotiators and Members of Congress. See Falk, A, pp.12-13. - 8 - C. Notwithstanding Movant's Other Professional Roles, His Role As A Journalist. Including Television And Other Media Activities, Itself Is Central To His Professional And Public Value. As is more fully discussed infra, p.20-21 a quite common and natural occurrence is the welding of journalistic activities with 10 scholarly pursuits. All of the considerations of confidentiality and trust discussed above apply with equal vigor to these journalistic pursuits, recited in detail at Falk,A, pp. 9-11 (including list of publications), 14 (with particular reference to television and radio, and 15 (journalistic activities in the explicit context of the Pentagon Papers).That Falk's contributions as a journalist are considered important among his peers is illustrated not only by the extent to which the media publish and utilize his work, but also by the recognition by his colleagues that such efforts are an important role to which attaches 11 considerable public value. It seems fair to say that Falk's ability to 10. In addition to Falk's affidavit, several of the supporting affidavits illustrate the role of journalism in the larger context of an academic career. See, e.g.. Steel,J, p. 41:"Like Professor Falk I am both a scholar and a journalist, a combination of careers which is true of a great many people at a time when it is necessary for professional expertise to be conveyed to the widest possible audience." 11. "Professor Falk's journalistic contribution on matters of world peace have in my view been of immense importance to the American public over the past four years." Mendlovitz, K, pp. 42-43 .See also, Teicholz, Cook, McGhee, M, N, L, at pp. 44-51 . - 9 - to deal in confidence and trust with Vietnam veterans and North Vietnamese and NLF negotiators, and journalistic efforts such dealings produce, parallels the kind of contribution to public dialogue that Earl Caldwell 12 ' has made respecting the Black Panther Party. In a more generalized sense, this can be said of virtually all of Falk's journalistic efforts, relating as they do to a subject of great controversy and the understandable reluctance of many of his sources, particularly government officials, to make revelations which might later come back to haunt them. Falk's articles, regarding such topics as war crimes and individual responsibility therefor, and prisoners of war, of necessity involve him in tracing the decision making process as it occurs within the government. Informed judgments at these matters "must deal with what responsible governmental officials knew at a given time what they told the public and Congress, and how they acted as a consequence." Falk, A, p. 17. It should be noted, most importantly, that the revelation of this decision making process is the single most important aspect of the Pentagon Papers and that informed commentary on the Vietnam War would be markedly dependant upon the kind of information contained therein. 12. These contacts, particularly with veterans who have revealed to Falk information relating to alleged war crimes (See Falk, A, p. 3, and Lauter, E, p. 32 ), are precisely analagous to Caldwell and the Black Panthers. Both kinds of contacts and transfer of information are infected with the fear that confidences, once broken could quite probably lead to some fomn of official retribution. - 10 - D. An Equally Significant Scholarly Function Flows From Movant's Sustained And Frequent Advisory Contacts With Members Of The United States Congress, And The Confidentiality And Trust Attached Thereto. Members of Congress, their respective staffs, and the staffs of the respective Congressional Committees have in recent years placed increased reliance upon the academic community in virtually all areas of legislative concern. Nowhere has this been more true than in the field of foreign policy, with virtually continual committee testimony being heard and counsel solicited and given. As is the case with his other contribu tions, Movant's activities here are remarkable. These activites are set forth at length at Falk, A, pp. 8-9,12, and 17-18, and have included publication of writing in the Congressional Record, confidential counseling with members of the Senate, counseling with Congressional staffs on matters relating directly to Vietnam (e.g. implications of SEATO treaty; status of Geneva Conventions on Prisoners of War), testimony and writing for the Senate Foreign Relations Committee, arranging confidential contacts between Senatccsand Paris negotiators, and counseling with Senators on the form and/or advisability of particular pieces of legislation. 13. The confidentiality which attaches to such activities has arisen in another context in these proceedings. See In Re Leonard Romberg, Witness, No. . To the extent that they overlap, counsel for Professor Falk specifically adopt those grounds set forth in support of the motion to quash filed by Dr. Rodberg. - 11 - All of these efforts have been carried out with the utmost attention to ascertaining and presenting accurately the facts about the war as they may be known to Falk. One example in particular illustrates the manner in which the gathering' of information, ituch of it confidential, plays a subtle yet crucial role in this process: "I was approached by Senator Harrison Williams of New Jersey in early 1971 to prepare an advisory report for him on whether to support an effort to curb the power of the President in the area of war and peace. The value of such a report depended on an assessment of the war in which Presidential decisions were made in the context of the Vietnam War. This kind of information is precisely the sort covered by the _̂4 Pentagon Papers." Falk, A, p. 18 (Emphasis supplied). The extraordinary subtlety and delicacy of contacts between academicians and Congress is set forth in detail at Stone, G, pp. 35-39 . Such delicacy is implied throughout those portions of Movant's affidavit 15dealing with Congressional contacts. 14. ^-pp. 13-14 infra,with regard to this decision making process. 15. Nowhere is this more apparent than with regard to channeling information from Paris negotiators to American officials. See Falk, A, p. 19. Also of significance is the indirect effect such information may have on legislation. See Crown and Standard, 0, pp. 52, 55 » detailing the affiants' belief that Falk's contacts in Paris contributed to the passage of the "Mansfield Amendment". - 12 - E. Movant's Role As A Legal Scholar, And As An Expert Legal Consultant and Witness With Regard To Judicial Proceedings Involving The Legal Aspects Of The Vietnam War Depend Crucially On His Confidential And Intimate Familiarity With And Access To The Subject Matter Of This Grand Jury Investigation, And His Value To Our Judicial System In This Capacity Is Arguably More Important Than Whatever Marginal Value He May Serve As A Grand Jury Witness. Let it first be said that "there are very few, if any, American international law specialists who are able and willing to play this role.", 16Falk, A, 16, and his value must be measured in this context. Falk's activities as legal advisor or defense witness is detailed at Falk, A, 16, and has centered primarily upon gathering, making available, and testifying in open court to the character and legality of the war policies. This activity has of course supplemented his other legal writings on the war, as well as his work with the Lawyers Committee on American Policy Toward Vietnam (See Crown, and Standard, 0, pp. 5 1-56.) and their wide distribution of material to members of the bench and bar. It has likewise been explicitly relied upon in several instances, most notably in this judicial district (Falk, A, p. 17). At the heart of this activity is unimpaired access to facts: "Let me stress that the inference of illegality relates closely to the actions and intentions of leading policy makers and that such an inference can be reliably made only by access to just such information as was contained - 13 - in the Pentagon Papers. An informed judgment about illegality must deal with what responsible governmental officials knew at a given time, what they told the public and Congress, and how they acted as a consequence. To cut someone (sic)like myself from such information is to reduce my capacity to base legal conclusions on the best available evidence. This information would no longer be available if I am to be required to testify as to whether and how I gained such information, from whom and when. Unimpaired access is needed to assure my professional competence. Falk, A, p. 17. (Emphasis supplied). 16. The value of this availability is set forth in the affidavit of Paul Lauter, Executive Director of the United States Servicemen's Fund: "In our work with the U.S. Servicemen's Fund we have come into touch with servicemen or veterans who have, or believe they have, committed war crimes or other violations of international or military law. In pursuance of our corporate purpose to seek the well-being of such serviceman and women, and in the public's interest in achieving justice, we have sought out expert scholarly and legal advice to determine the most appropriate course of action for such persons to pursue, consonant with their consciences, mental health, the relevant law, and the public interest. Professor Falk is one of the very few experts in such matters to whom we have wished to turn. However, given the ambiguous character of many war crimes statutes and precedents, the sometimes uneven application of the Uniform Code of Military Justice, and the highly emotional character of these matters in the United States today, absolute confidentiality and trust is essential to GI's and veterans desirous of examining possibly illegal activities, in Vietnam and elsewhere, in which they participated. It is my judgment as Executive Director of the Fund that such GI's and veterans would be extremely reluctant to discuss their cases with scholars who had been or were to be interrogated by Grand Juries, regardless of what they did there. Work on behalf of United States military personnel would thus be significantly limited and, it may be, the causes of establishing clarity in the legal obligations of military personnel and the public's interest in seeing justice done would be, too." - 14 - F. Movant's Mere Appearance Before This Grand Jury, Coupled As It Is With No Showing Of Compelling And Overriding Governmental Interest, Will Provide No Benefit To The Grand Jury And Will Irreparably____ Interfere With His Own Professional Activities And Similar Activities By Others. a. Activities such as Movant's in all of his above-mentioned roles, provide an indispensable and unique public value, which value is premised upon absence of governmental intrusions. Those portions of the record which testify to public value necessarily rest on the premise that governmental intrusion, including the mere appearance under compulsion before a grand jury, will diminish or destroy public rights. It is well to note here the assessment of such dangers necessarily involves a balancing process, and that to the extent that public value of a given individual's contribution may be large, the balance is affected accordingly. Also noteworthy here is the fact that the publication of the subject matter of this grand jury inquiry has already been held to be of public value and non-injurious to the national security. New York Times v. United States, 91 S. Ct. 2140(1971). To the extent that a grand jury witness was not a direct participant in whatever criminal activities attached thereto, the need to protect his public value is accordingly enhanced. None of the countless experts who have studied the Vietnam War have contributed more to scholarly and public dialogue than Richard Falk. - 15 - Repeated and continual reference to this fact is made in the affidavits before this Court, and it is made notwithstanding whatever partisan 17 views various scholars and journalists have expressed and with particular 18 reference to cited examples. The right and need for the kind of work Falk has done to be in the public domain is perhaps best expressed by W. Duane Lockard, Chairman of the Department of Politics at Princeton University: "I believe it to be in the public ingerest for access by scholars and journalists to confidential sources to be protected to as wide a degree as is reasonably possible. It is always better to have more rather than less public knowledge about dissident groups— both to let their ideas be presented through responsible sources and to permit thoughtful analysis of the social and political phenomina involved. Professor Falk's analysis as a scholar and his journalistic presentation of evidence and argumentation would seem to me to be outstanding examples of the kind of work that deserves precisely the kind of protection in question here. If his scholarly and other professional activity serves the cause of a democratic and open society, as I would insist it does, then it deserves protection because it is quite literally in the public interest." Lockard, Q, p. 59 .(Emphasis supplied) 17. E.g. William J. McLung, Managing Editor of the University of California Press: "The strength of his scholarship and its value to our society has been based in part, I believe, on his relationship of trust with both opponents and defenders of American policies in Vietnam and elsewhere." McLung, p, p. 57 . See also, Feiveson, H, quoted, supra, fn. 6 18. E.g. "Professor Falks contribution to our discussions and to our further research./involving project participated in by scholars from around the world/ are considered by the entire group to have been particularly; significant and we are aware that some of his contributions have been based on information regarding which he assured confidentiality of source." Mendlovitz, K, p. 42 . "His contributions to at least three of these conferences and seminars /Fund for New Priorities in America/were perhaps the ipajor reason for the impact of our efforts in the areas of concern." - 16 - This assessment is shared, either explicitly or implicitly by all of 19 the affidavits before this Court. b. A condition precedent to Movant's mere appearance should be a shoving by the government of compelling and overriding national interest. This contention, in its legal implications, is set forth more fully, infra, pp 41-44. No such showing has yet been made in the record before this Court, and that is the only kind of showing which 18. (cont.) Meyers, F, p. 34 . See also the account of Falk's unique role in television coverage of the Paris negotiations, McGhee, Teicholz, Cook, L,M,N, pp. 44-51 ; and his role in arranging contacts between Congress and Paris negotiators, Falk, A, pp 12-13. 19. E.g., Mendlovita, K, at p.42 : "In my judgment there is an over riding public interest in making certain that scholars and journalists are able to carry out this type of investigation. Furthermore, any procedures, such as an appearance before the grand jury, which jeopardizes this confidentiality would seriously curtail this source of information.... Professor Falk's journalistic contributions on matters of world peace have in my view been of immense importance to the American public over the past four years." Crown and Standard, O, at pp. 53-56: "We earnestly believe that Professor Falk's very appearance before a Grand Jury pursuing this kind of investigation will irreparably breach and damage associations and have a chilling effect on his relationships with such sources of information to the detriment of the public's right to know the truth about this crucial issue affecting the very lives of Americans." (Emphasis supplied). Thatcher, I, at p. '40 : "Such interference with the public's right to know is tantamount, in the effect it would have, to overt official censorship... If the people who provide such information on the understanding that they will not be identified as its source see that there is no protec tion against disclosure because Grand Jury investigations of this kind can compel scholars and journalists to betray the trust placed in them, then it is inevitable that these sources of information will dry up, and the public - 17 - 19. (con't.) will be deprived of the possibility of learning more of the truth than official sources choose to reveal...and they would have no access to... any insights or information other than what the public record disclosed." (Emphasis supplied). Meyers, F, at p. 34 : "Expertise is vital to the continuing education process in a free society.... I believe that the expertise of Professor Falk clearly requires the kind of source material which he must receive on a confidential basis. If this opportunity is removed from him and other experts and scholars the damage will be far greater than only to their expertise." (Emphasis supplied). _ _ Barnet, B, at p. 29 : "To interfere with /Falk‘S important public service by compelling him to appear before a Grand Jury investigating matters within his professional competence as lawyer, scholar and journalist would be a disservice to the public." - 18 - could force Falk to testify beyond the confines of the kind of protective order to which he is entitled. Furthermore, Falk states in his affidavit that there is absolutely nothing as to whii h he could testify which would not be proscribed by such an order. See Falk, A, p. 21 . Thus, on the record as it now stands, this Court, by compelling mere appearance, would essentially be compelling an act useless to the grand jury and damaging to Falk. The damage,in this context, is not so much the danger of revealing particular confidences before the grand jury which relate to the Pentagon Papers, as a protective order would proscribe that. The damage is the obvious and inevitable certainty, already spelled out in our summation of the record, that sources of information concerning the war, particularly, and foreign policy generally, would be inhibited for fear of an attempt to compel disclosure before some future tribunal in some context as yet unknown. We would ask this Court to bear in mind that fears and inhibitions of this sort, particularly on the part of laymen and foreign sources (with whom Falk deals regularly) do not ebb and flow as a function of the technical distinction between "mere appearance" and "actual testimony". That the government may seek to compel disclosures, not that such disclosures will actually occur, sets these chilling fears in motion. - 19 - IV. ARGUMENT I. THE PROFESSIONAL AND PUBLIC-EDUCATIONAL ACTIVITIES MOVANT SEEKS TO PRESERVE ARE PROTECTED BY THE FIRST AMENDMENT AGAINST GOVERNMENTAL INTRUSION The issue before this Court, quite apart from that of the proper scope of a protective order, is whether any privilege at all 20 attaches to movant's professional activities. This question, to the extent that it may relate to movant's non-journalistic activities,is one of first impression. The related question, assuming a privilege, of whether the government must, in advance of testimony, show a compelling need for mere appearance before the grand jury was decided affirmatively in Caldwell v. United States, 434 F.2d 1081 (9th Cir., 1970), cert granted 21 91 S. Ct. 1616(1971). 20. Cf. Caldwell v. United States 434, F.2d 1081, 1083 (9th Cir. 1970), cert, granted 91 S. Ct. 1616 (1971): "...before we can decide whether the First Amendment requires more than a protective order delimiting the scope of interrogation, we must first decide whether it requires any privilege at all." 21. This is the clear holding of Caldwell, 434 F.2d at 1089. Judge Jameson's concurring opinion agrees with Judge Merrill on the proposition that where a privilege attaches, the government could properly be required to show compelling need even prior to the issuance of a subpoena. Caldwell, supra at p. 1092. Clearly the Caldwell inspired Department of Justice guidelines for subpoenas to the news media envisage this, fn. 3, at 1091. - 19A - A. Movant's Journalistic Activities, Because They Are Primarily Concerned With The Subject Matter Of The Pentagon Papers, Fall Within The Scope Of Caldwell v, United States. The record before the Court is clear and uncontradicted for the proposition that Richard Falk's journalistic activities related to the War entitle him to the kind of protection afforded Earl Caldwell. See pp. 9-10 , supra. Nor should Falk suffer because his activities have encompassed so much more than journalism, strictly defined . Indeed precisely the opposite, for of all his activities, those related to journalism have directly reached a more diverse kind of audience than his scholarly and consultative pursuits, and,in fact, were intended to secure this end. Researchers and academicians have assumed in our society many of the functions formerly reserved to journalists as social and political 22 commentators. And where they utilize the mass media to impart their commentary and expertise to the public they act within limits long protected by the First Amendment. Caldwell, supra, at 1084. The very subject of this grand jury investigation has been afforded similar sweeping protection. New York Times v. United States, 91 S. Ct. 2140(1971). To argue, as the 22. Cf. Horowitz and Rainwater, "Sociological Snoopers and Journalistc Moralizers," 7 Transaction 4,5 (May, 1970): "The intertwinings of journal istic and sociological expertise are complex indeed and have been from the early days of empirical American sociology." And see Steel, J, infra, at fn. 10. - 20 - government must in this case, that national interest cannot prevent the American public's access to this material but that that same national interest somehow proscribes Falk's right to professionally assess its significance seems disengen ous. B. Notwithstanding The Applicable Scope Of The Journalist Privilege, Movant's Activities As A Professional Scholar And Author Are Themselves Cognizable Under The First____ Amendment, And, As Such, Are Entitled To The Parameters Of Protection Established By Caldwell. The sum total of Movant's scholarly activities has been a virtually unending stream of books, articles, monographs and lectures relating to American foreign policy in the context of the Vietnam War. This work product is impressively recounted in the Falk affidavit, as well as the crucial and unique role which confidence and trust have played in this effort at "getting at the real facts" (Falk, A, 3) and "the best available evidence" (Falk, A. 17). The primary goal of these efforts has been to publish this material as widely as possible and in such a way as to bring insightful and comprehensive information to professional colleagues, the Congress, and the American public. On the record before this Court there is no question but that, in his field, Richard Falk's writings and commentary are authoritative, and that the subject matter of the Pentagon Papers is vitally and intimately related to his work. It is by now a commonplace that informed scholarship and the processes of its distribution are protected by the First Amendment: "...the State may not, consistently with the spirit of the First Amendment contract the spectrum of available knowledge. The right - 21 - of freedom of speech and press included not only the right to utter or to print, but the right to distribute, the right to receive, the right to read...and freedom of inquiry, freedom of thought, and freedom to teach..-- indeed the freedom of the entire university community...Without these periph^^al rights, the specific rights would be less secure." (Emphasis supplied). Each of the steps in this progression from information collection to publication and dissemination has been protected by the Court. The freedom to publish and circulate news has long been established. 24 indeed, in the very context of Richard Falk's concern. New York Times v. 25United States, supra. The freedom to write and the freedom of the 26 public to receive information have more recently been perceived as distinct rights. Moreover, the information gathering functions of 27 investigators are clearly protected by the First Amendment, and are the 23. Griswold v. Connecticut, supra, 381 U.S. at 482-3. Citations omitted. 24. See, e.g.. Near v. Minnesota, 283 U.S. 713(1931); Lovell v. Griffin, 303 U.S. 44(1937); Winters v. United States, 333 U.S. 507(1943); Talley v. California, 362 U.S. 60(1960). 25. See e.g.. New York Times v. Sullivan, 376 U.S. 254(1964); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81(1967). 26. See, e.g., Martin v. City of Struthers, 319 U.S. 141(1943); Lamont v. Postmaster General, 381 U.S. 301(1965); Stanley v. Georgia, 394 U.S. 557(1969) . 27. Associated Press v. KVOS, 80 F.2d 575, 581(9th Cir. 1935), rev'd on other grounds, 229 U.S. 269(1936). See also Providence Journal Co. v. McCoy, 94 F.Supp 186, 195-196(D.R.I., 1950) aff'd on other grounds 190 F.2d 760(lst Cir. 1951). - 22 - factual and constitutional precondition of the ability to publish and circulate. All of these rights take on added import when interpreted 28 in light of the particular needs of the academic community. Mr. Justice Frankfurter, in language so apposite to Falk's professional roles and the record before this Court that it bears quotation at length, clearly recognized this; "Progress in the national sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are b o m of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupa tions of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good— if understanding be an essential need of society— inquiries into these problems speculations about them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling. These pages need not be burdened with proof, based on the testimony of a cloud of impressive witnesses, of the dependence of a free society on free universities. This means the exclusion of governmental intervention on the intellectual life of a university. It matters little whether 28. The Supreme Court has recognized these needs as "almost self- evident". Sweezv V. New Hampshire, 354 U.S. 234, 250(1957): "Teachers and students must always remain free to inquire to study and to evalute, to gain new maturity and understanding; otherwise our civilization will stagnate and die." - 23 - such intervention occurs avowedly or through action that inevitably tends to check the ardor and fear lessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor. Sweezy v. New Hampshire, 354 U.S. 234, 261-262(1957) (Frankfurter, J, concurring). This language, flowing as it did from a case involving refusal of a witness (legislative) to give compelled testimony, is all the more relevent. In Sweezy, as here, the government offered no evidence that 29 Professor Sweezy had himself, violated the law, but rather justified 30 compulsion with the assertion that he might lead them to others that had. It is clear that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and 31 antagonistic sources is essential to the welfare of the public." This is particularly so when such information is vitally relevent to issues of national concern, posed, as with the Vietnam War, in times of 29. 354 U.S. at 261. 30. This Court has expressed an inclination to look to In Re Murtha, N.J. Super. Ct., App Div. 7/6/71, for guidance on this question. Murtha is discussed, infra, p. 39, but it is well to note here that the existence of a First Amendment privilege was found lacking in that case. To the extent that Falk protected by such a privilege, as we believe is clearly demonstrated, Murtha is not authority for compelling his testimony in the absence of a particularized governmental need therefor. 31. Associated Press v. United States, 325 U.S. 1, 20(1945). Cf. Keyishian v. Bd. of Regents, 385 U.S. 589, 603(1967): "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us....That freedom is therefore a special con cern of the First Amendment ....The classroom is peculiarly the "market place of ideas". The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth..." (citations omitted). - 24 - 32 crisis. That this work ought to be encouraged in the university, and that it ought not be interfered with by governmental intrusion, is at the heart of the evolution of the legal concept of academic 33 freedom. Indeed, because of its devotion to scholarship and academic inquiry, the university conforms to the "marketplace of ideas" concept even more fully than does the public forum. For this reason the danger of infringement is particularly circumscribed by the First Amendment, Sweezy, supra. As is the case with all constitutional protections,this recognition of academic freedom has incorporated within it a judicial evaluation that the activities to be protected are so valuable to society that a compelling and overriding interest is the condition precedent for governmental intrusion upon them. Certain observations about the value of academic inquiry, of which Falk's activities are but an example, may be useful to this Court. First, empirical academic research, the gathering of reliable and relevant infomation, is crucial to its success Second, issues which are created, as here, when the government seeks to invade the confidentiality necessary to academic inquiry.cafinot be adequately 34 32. As the court.in Caldwell points out, the need "takes on special urgency in times of widespread protest and dissent. In such times the First Amendment protections exist to maintain communication with dissenting groups and to provide the public with a wide range of information about the nature of protest and heterodoxy." Caldwell, supra, at 1084-5. See also Thornhill v. Alabama, 310 U.S. 88, 102(1940); Associated Press v. United States, supra, fn. 31.; Garrison v. Louisiana, 379 U.S. 64(1964). - 25 (Footnotes continued) 33. See, generally, "Developments in the Law of Academic Freedom," 81 Har\t> L. Rev. 1045, 1048(1968), and sources there cited. This concept of academic freedom is reflected not only in recognition of the need for such freedom, but also in certain institutional arrangements designed to protect it. See, e.g., C. Byse and L. Joughin, Tenure in American Higher Education (1959). 34. Certainly Falk's affidavit is replete with references to how crucial it is to him, particularly in the context of the Pentagon Papers. E.g, Falk, A, 17. Extensive literature supports the societal value of empirical research in other contexts. For instance, a National Science Foundation commission has noted its relevence to education, engineering, journalism law, labor relations, medicine, and public health, mental health and social work. Brim(Chairman), Knowledge Into Action; Improving the Nation's Use of the Social Sciences (1969). U.S. Department of Health, Education and Welfare, Toward a Social Report (1969); Staff of House of Representatives Research and Technical Programs Sub. Comm. On Government Operations, 90th Cong., 1st Sess., "The Use of Social Research in Federal Domestic Programs," 4 Parts (Comm. Print 1967); Orleans, "The Political Uses of Social Research," 314 The Annals 28(1971); Lyons, "The President and his Experts," 394 The Annals 36(1971); Beckman, "Congressional Informa tion Processes for National Policy," 394 The Annals 84(1971); Reicken, "The Federal Government and Social Science Policy," 394 The Annals 100(1971); W. Bateman, An Experimental Approach to Program Analysis; Step Child in The Social Sciences? (1969); Holt, "A System of Information Centers for Research and Decision Making", 60 Am. Economic Rev. 149(1970). For these and other sources counsel to Richard Falk are indebted to Paul Nejelski, Esq., and Lindsey Miller Lerman, whose soon to be published monograph entitled "Protection of Confidential Research Data" has generously been made available to us. - 26 - framed in terms of the suppression of truth versus the professional inconvenience which might result. When requests are made for confidential information, two forms of truth are competing— judicial testimony versus society's interest in access to competent and accurate information. The evaluation of a particular request for confidential information must thus recognize that but for the confidentiality which attaches to a scholar's 35 inquiries, society's interest would not be served. The government's ability to close off a particular kind of inquiry by forcing such disclosure is clearly an intimidating power, made even more dangerous by the fact that it is only likely to be used, or for that matter necessary, when dealing with critics or potential critics of government policy. Indeed the 36 particular stiuation of Richard Falk appears an apt lesson in this regard. 35. The peculiar irony of this is that but for this confidentiality, the interest of this grand jury, whatever it may be,likewise cannot be served. By compelling the disclosure of such confidences, and thus insuring that they will not be made in the future, a grand jury would in effect choke off its own ability to ascertain truth where, not as here, there really a compel ling, overriding, and urgent need. See Caldwell, supra, at 1086, fn. 5 and accompanying text. The chilling effect which would be caused by the vulnerability of research findings is at least partially aggravated by a growing suspicion between the research community, especially academia, and government. University criticism of the Vietnam War has emphasized that academia— like the news media— represents an independent power which cannot be readily manipulated by the government. In addition, the rejection or, at best, indifference, with which the reports of Presidential Commissions have been received, has discouraged researchers who have worked on or identified with these projects. To the extent that compelled grand jury disclosure of research confidences acts as a further disincentive, it must be avoided. See Green, "The Obligations of American Social Scientists", 394 The Annals 13, 25(1971). See also Caldwell, supra, at 1086. - 27 - Footnotes continued 36. Cf., Grosjean v. American Press Co.. 297 U.S. 233, 250(1936); "...since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." - 28 - Movant's Professional Activities Are Protected Against This Grand Jury's Intrusion Unless And Until The Government______ Demonstrates National Interest So Compelling, Overriding, And Unique to Movant, That It Outweighs The Public Worth Of His Own and Similar Protected Pursuits. The issue before this Court requires a judicial evaluation of the strength of the government's objectives and the appropriateness of 37 its methods. The Court is thus faced with the task of articulating justiciable standards with which to measure the amount of protection 37 A Falk ought to be accorded. It is clear, however, that once a First Amendment privilege is established, the parameters of protection set forth in Caldwell v. United States, supra, ought expressly to be applicable. This is true regardless of whether Falk's First Amendment privilege attaches due to his journalistic pursuits, on the one hand, or his activities as a scholar and author, on the other. In fact, this combination of roles, fully documented in the record, makes his side of this balance weigh even more. The Court in Caldwell reached its result with full recognition of the broad and unfettered scope of inquiry which grand juries have traditionally exercised, 434 F.2d at 1085, and Professor Falk likewise expresses such respect, Falk, A, 21. Caldwell also found guidance in the 37. Where, as here, the alleged abridgement of First Amendment interests occurs as a by-product of otherwise permissible governmental action not directed at the regulation of speech or press, "resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown." Barenblatt v. U.S. - 29 - Footnotes continued 37. (cont.) , 360 U.S. 109, 126(1959); see, e.g., Konigsberg v. State Bar of Cal., 366 U.S. 50-57(1961); Bates v. Little Rock, 361 U.S. 516,(1960) NAACP V. Alabama ex rel. Pattersen, 357 U.S. 449, 460-467, (1958); Kalven, "The New York Times Case: A Note on 'The Central Meaning of the First Amendment.' " 1964, Sup. St. Rev. 191, 214-16(1964). 37 . As set forth infra, p. 38 , this balancing requires a showing by the Government that it has no other sources of information which do not involve an "equal degree of incursion upon First Amendment freedoms." In assessing what "degree of incursion" is here present, the Court must look not only to the general nature of the First Amendment freedom asserted, but also to its relative strenth in the particular case. Thus, the Court in Caldwell found that because of Caldwell's uniqueness, he was entitled to a showing of "compelling and overriding national interest." Falk's uniqueness to his own profession is at least equal to, if not stronger than, Caldwell's; and, correspondingly, the same compelling urgency ought to be shown by the Government in order to force his appearance. Another way of expressing this is to say that the record before this Court is at least as narrow as that before the Caldwell court; and the narrowness of the record is the strongest reason for affording the protection sought. See Caldwell, gupra, at 1090, discussed infra, p. 44 - 30 - Supreme Court decisions regarding conflicts between First Amendment interests and legislative investigatory needs, 434 F.2d at 1085-6, and found, on a record notably similar to the record before this Court, that the government's burden in the balancing process simply had not been met. In the absence of compelling and overriding need, then, the government cannot be permitted the power to "appropriate" protected "investigative efforts" to its own behalf— to convert a witness, after the fact, "into 38 an investigative agent". 434 F.2d at 1086. In order to demonstrate such need the government must, at the least, establish the following: (1) The information sought must be demonstrably relevant to a clearly defined, legitimate subject of governmental inquiry. The reason for demanding clear definition of the subject of the investigation is plain. Like the requirement that legislation which may trench on 39 First Amendment interests meet "strict" standards of specificity, insis tence on strict definition of the scope of an investigation assures that 38. This Court might bear in mind that the particular problem of protecting academic and scholarly investigative confidences has already been recognized and planned for in other contexts. One notable example are the guidelines issued by the American Council on Education for their ^tudy of campus unrest; "5. /the above named emplyees of the projecjt/ will explicitly undertake to protect all confidential information, whether recorded or not, that i.s revealed to them. They will specifically agree to refuse to divulge confidential information to any______ person or group, including investigative agencies, committees, and courts of law, even if they or their records should be_______ subpoenaed'̂ - 31 - Footnotes continued. 38. (cont.) "6.....we advise and counsel all researchers in this study /presumably not including those named in paragraph 5, supra/ to refuse to release or provide any confidential information, even if directed to do so by a subpoena or other court process from a legis lative body or court of law. We will support with all all legal means any such refusal." Emphasis supplied. Advisory Committee A.C.E. Study on Campus Unrest, "Statement on Confidentiality, Use of Results, and Independence," 165 Science 158, 159(July 11, 1969). These guidelines are cited advisedly, as the investigation of campus unrest would be quite likely to expose evidence of crimes which the government would obviously be entitled to prosecute. 39. E.g. Smith v. California, 361 U.S. 147, 151(1959); Cramp v. Board of Public Instruction, 368 U.S. 278, 287— ^288(1961); NAACP v. Button, 371 U.S. 415, 432-433(1963); Ashton v. Kentucky, 384 U.S. 195, 200(1966). - 32 - the governmental body whose processes may intrude upon the First Amendment has focused both upon its purposes and upon the question of whether those purposes require the intrusion. See Mr. Justice Harlan, concurring, in Garner v. Louisiana, 368 U.S. 157, 203(1961). The requirement is a safeguard against overbroad and formless investigations which — like overbroad and formless laws — "lend themselves too readily to the denial of /First Amendment_/ . . . rights." Dombrowski v. Pfister, 380 U.S. 479, 486(1965). See particularly, Liveright v. Joint Committee, 279 F. Supp. 205, 215, 217 (M.D. Tenn. 1968). Finally, the requirement of strict definition of the subject under investigation is indispensable to enable first the subpoenaed witness and his counsel, and later the courts themselves, to determine the point of proper balance between investigative need and the privacy protected by the First Amendment. For all these reasons, indefiniteness in the scope of governmental inquiry has consistently been regarded as fatal to investigations in the First Amendment area. Watkins v. United States, 354 U.S. 178(1957); Sweezy v. New Hampsire, supra Scull V. Virginia ex rel. Committee on Law Reform and Racial Activities, 359 U.S. 344(1959); Liveright v. Joint Committee, supra. And, once the subject of an investigation has been adequately defined, the use of compulsory process is required to be confined to matters strictly relevant to that subject. Ordinarily, of course, the command that grand jury subpoenas seek only evidence relevant to the jury's inquiry is administered with considerable elasticity. E.g., In Re Grand Jury Subpoena - 33 - Duces Tecum, 203 F. Supp. 575, 579(S.D.N.Y. 1961). But that degree of tolerance may not be indulged whereinquiry touches First Amendment interests, for in these latter areas compulsory disclosure is forbidden unless it is "demonstrated to bear a crucial relation to a proper governmental interest or to be essential to the fulfillment of a proper governmental purpose." Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S., at 549. See DeGregory v. Attorney General of New Hampshire, 383 U.S. 825(1956) (2) It must affirmatively appear that the inquiry is likely to turn up material information, that is; (a) that there is some factual basis for pursuing the investigation, and (b) that there is reasonable ground to conclude that the particular witness subpoenaed has information material to it■ In the First Amendment area, even relevant inquiries may not be pur sued without some solid basis for belief that they will be productive. For example, Jordan v. Hutcheson, 323 F.2d 597, 606 (4th Cir. 1963), condemned a legislative investigation which purported to inquire into certain criminal activities but also resulted in the disclosure of constitutionally protected associations, saying that courts "can and should protect the activities of the plaintiffs . . . in maintaining the privacy of their First Amendment activities against irreparable injury unless and until there is a reasonably demonstrated factual basis for assuming that they are guilty of the offenses which the Committee is investigating." - 34 - "of course, a legislative investigation — as any investigation — must proceed 'step by step', . . . , but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and sev%ely curtain or inhibit constitu tionally protected activities or seriously interfere with similarly protected associational rights." (Gibson V. Florida Legislative Investigation Committee, supra, 372 U.S., at 557.) (3) The information sought must be unobtainable by means less destructive of First Amendment freedoms. This requirement derives from the pervasive First Amendment principle of the "narrowest effective means," recognized in cases of compulsory disclosure of protected associa tions, e.g., Shelton v. Tucker, 364 U.S. 479, 488(1960); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296-297(1961), as in others, e.g., Elfbrandt v. Russell, 384 U.S. 11, 18(1966). Simply stated, the principle is: "that a governmental purpose to control or prevent activities constitutionally subject to state regula tions may not be achieved by means which sweep un- nec^sarily broadly and thereby invade the area of pro tected freedoms. .../T /he power to regulate must be so exercised as not, in attaining a permissible_end^ unduly to infringe the protected freedom. ... '. . ./E/ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' " (NAACP v. Alababa ex rel. Flowers, 377 U.S, 288, 307-308(1964).) - 35 - As applied to this grand jury investigation, this principle leads plainly to the conclusion that the jury may not compel Falk's testimony, intruding into and threatening destruction of his confidential relationships, if it can find out what it wants to know from other sources that do not 40 implicate First Amendment concerns. 40. Compare In Re Murtha, 40 USLW 2052, discussed infra, p. 39 We think that Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), recognizes this point. The case arose out of a defamation action brought by Judy Garland against the Columbia Broadcasting System, predicated on the complaint that CBS had made libelous statements against Miss Garland and affirmatively induced their publication in newspapers and elsewhere. A critical instance of the alleged defamation was a newspaper column by Marie Torre containing statements about Miss Garland attributed to a CBS "network executive." In pretrial proceedings, the two CBS executives whom Miss Garland had named in her deposition as the likely sources of the Torre story were deposed and denied all knowledge of it. Counsel for Garland then deposed Marie Torre and inquired concerning her source; Miss Torre refused to answer, clai'ming a First Amendment privilege; and she was held in contempt. The Second Circuit (per Judge Stewart, now Mr. Justice Stewart), affirmed the contempt commitment, but only after accepting "at the outset the hypothesis that compulsory disclosure of a journalist's confidential sources of information may entail an abridgment of press freedom by imposing some limitation upon the availability of news." 259 F.2d, at 548. "What must be determined is whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom."(Ibid) The court held that it did because the Torre testimony "went to the heart of the plaintiff's claim" (I^., at 550) in a case that was being prepared for trial. Torre was plainly the only available source of the information sought from her, and accordingly the Second Circuit emphasized "that we are not dealing. . . with a case where the identity of the news source is of doubtful relevance or materiality" (Id., at 549-550). The force of the Garland court's reservation is the more apparent with regard to grand jury proceedings, for grand juries inquire only to determine probable cause; and they therefore have no compelling need for cumulative evidence — evidence from more than one source — which, for a trial jury, might spell the difference of persuasion. - 36 - 40.(cont.) Finally, Garland v. Torre appears to recognize — as we think it must consistently with Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, supra; and DeGregory v. Attorney General of New Hampshire, supra — that governmental attempts to compel disclosure of confidential associations may sometimes be forbidden by the First Amendment even though the protected evidence is sought under pro cedures and circumstances that meet the requirements we have described in paragraphs (1), (2), and (3), in text supra. This is implicit in the Second Circuit's approach of particularistic "balancing" of First Ttoiendment freedoms against the justifications for compelled disclosure, and in the court's recognition that Garland did not involve "the use of judicial process to force a wholesale disclosure of a newspaper's confi dential sources of news" (259 F.2d., at 549). The proviso implies, at the least, a prohibition of compelling Falk to make disclosures whose broadly destructive effect upon First Amendment freedoms palpably outweighs the value of the uses to which a government investigation body may put them. Cf. United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217(1967). As to this latter point, see also fn. 37A, supra. - 37 - These established principles dictate the test that we set forth in the motion to quash originally filed with this Court, namely, that the government must show: (1) Reasonable grounds to believe that Richard Falk has information, which is (2) Specifically relevant to an identified episode that this Grand Jury has some factual basis for investigating as a possible violation of designated statutes within its jurisdiction; and (3) That the government has no alternative sources of the40A same or equivalent information whose use would not entail an equal degree of incursion upon First Amendment freedoms. Is there, then, a sufficient governmental showing of compelling and overriding need to force Richard Falk's appearance before the grand 41 jury? We have only a government representation that the grand jury is investigating the alleged commission of a variety of statutory offenses all of which presvimably relate to the Pentagon Papers. This broad assertion plainly does not meet the test set out above. First, let it be noted that the government is seeking to compel Falk's appearance for the apparent purpose of testifying about the distri bution and publication of materials whose distribution and publication may 41. Made, it should be noted, not in this case but on August 19, in the matter of Stephen Popkin, who was later excused by the Government. 40A. See, infra, fn. 37A - 38 - not, consistent with the First Amencinent, be suppressed. New York Times v. United States, supra. Nor has there been any demonstration that there has been committed any crime other than that alleged to Daniel Ellsberg, or that, assuming there has, Falk has some direct and immediate knowledge of it, or that, assuming he does, such information would not be forthcoming from someone else. In Re Murtha, N.J. Super. Ct., App Div. 7/6/71, in which this Court has expressed interest, is instructive in these regards: A murder had clearly occurred. Sister Murtha had voluntarily admitted to the police that a direct, unambiguous admission had been made to her, and 42 she was the only person to whom the information had been given. And, apart from all of this and most important of all, she had demonstrated no First Amendment or other testimonal privilege which might protect these 43 revelations. 42. In Re Murtha. in this regard, is similar to Garland v. Torre, fn. 40 supra. Worth mentioning in this context is the fact that, according to news paper accounts, zerox copies of all or a portion of the Pentagon Papers were distributed all over the country, with their "Top Secret" designation removed. Even if the government asserted, or in fact could prove, that some of these copies had come into Falk's possession, this is no evidence what soever that he was a party to or had any knowledge of who originally dis tributed them, or, depending on how he received them, who his own source was, For the government to invade Falk's First Amendment privilege in pursuit of such marginal ends seems, quite frankly, an attempt to cut off his nose to spite their face. 43. Cf. Barenblatt v. United States, 360 U.S. 109, 129-132(1959) where, again, no testimonial privilege was found. Barenblatt, involved legislative investigation of alleged Communist infiltration of educational institutions. It is clearly distinguishable from Falk's situation in that Barenblatt made - 39 - 43. (cont.) only the broadest of objections to the right of Congress to inquire into his "political" and "religious" beliefs or any "personal or private affairs" or "associational activities". 360 U.S. at 114. We are not arguing, as Barenblatt did, that a witness is immune from process merely because he is a teacher. Falk has particularized in great detail the narrow degree of his concern and has made the kind of record on this issue that was found lacking in Barenblatt("Finally, the record is barren of other factors which in themselves might sometimes lead to the conclusion that the individual interests at stake were not subordinate to those of the state". 350 U.S. at 134.). - 40 - In The Absence Of Compelling And Overriding Need, Movant May Not Be Compelled To Appear Before The Grand Jury At All, As There Is No Testimony He Can Give Which Would Not Be Within The Bounds Of The Protective Order Required Under The Rule Of Caldwell. Caldwell holds that where a First Amendment privilege attaches, the government must show a compelling and overriding national interest 44 for testimony prior to the witnesses appearance. In making this deter mination the Court was clearly influenced by the witness' sworn assertion that there was nothing to which he could testify that was not protected by the District Court's protective order. 434 F.2d at 1089. Movant believes that the record in this case is virtually identical in its sum to that made by Mr. Caldwell and that, accordingly, he is entitled to 44. The Court of Appeals in Caldwell went further than the District Court, as District Judge Zirpoli had held only that Caldwell was entitled to a protective order prior to testifying. On appeal, the Court held that once it is found that the witness is entitled to such an order, and he asserts that the order protects virtually all of his potential testimony, "the cost to the public of excusing his attendance is so slight" as to obviate the necessity of mere appearance. 434 F.2d at 1089. - 41 - 45 findings of fact similar in nature to District Judge Zirpoli's and a disposition on the "mere appearance" issue similar to that made by the Ninth Circuit. In support of this contention. Movant asserts under oath 45. Judge Zirpoli's order made inter alia, the following factual findings: "(1) That the testimony of Earl Caldwell sought to be compelled by the subpoena...will relate to activities of members of the Black Panther Party; "(2) That Mr. Caldwell's knowledge of those activities derived in substantial part from statements and information given to him, as a professional journalist...within the scope of a relationship of trust and confidence; "(3) That confidential relationships of this sort are commonly developed and maintained by professional journalists, and are indispensable to their work of gathering,analyzing and publishing the news." "(4) That compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardizes those relationships and thereby impairs the journalist's ability to gather, analyse and publish the news... "(5) That the Government has shown no compelling and overriding national interest in requiring Mr. Caldwell to give testimony before the grand jury that would invade and jeopardize his confidential relationships..." On the basis of these findings an order was entered, providing, in pertinent part: "(1) That if and when Earl Caldwell is directed to appear before the grand jury pursuant to the subpoena of March 16, 1970, he shall not be required to reveal confidential associations, sources,or information received, developed or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media; - 42 - 45. cont. "(2) That specifically without limiting paragraph (1), Mr. Caldwell shall not be required to answer ques tions concerning statements made to him or informa tion given to him by members of the Black Panther Party unless such statements or information were given to him for publication or public disclosure " provided, however, that: "the Court will entertain a motion for modification of this order at any time upon a showing by the Govern ment of a compelling and overriding national interest in requiring Mr. Caldwell's testimony which cannot be served by any alternative means . . . " - 4 3 - 46 that he has read the protective order entered by Judge Zirpoli and that there is no testimony he could give which would not be protected by a similar order were one to be entered in this case. Falk, A, p. 21 The kind of damage which may be done by Falk's appearance is outlined at pp. 17-19 , supra. The broad aspects of this threat are discussed at Caldwell, 434 F.2d at 1087-1089. The holding of Caldwell on this point is explicitly narrow, and the terms of its narrowness, set forth at 1090, are worth our attention: Richard Falk, like Caldwell, is clearly unique in his field. He enjoys an incomparable trust and confidence in dealing with matters of extreme sensitivity and national importance. To the extent that an individual qualifies for the protection now sought on his behalf, he clearly stands at the top of the list. 46. Although it was not asked to do so, the Ninth Circuit specifically affirmed the terms of this order. - 44 - II. SILVERTHORNE LUMBER CO. v. UNITED STATES, 251 U.S. 385 (1920) AND 18 U.S.C. SECTIONS 2510(11), 2515, 2518(10) AND 3504 REQUIRE THE GOVERNMENT TO AFFIRM OR DENY THE USE OF WIRETAP AND/OR OTHER ELECTRONIC SURVEILLANCE UPON THE ALLEGATION BY A WITNESS THAT SUCH SURVEILLANCE HAS IN FACT OCCURRED. Movant has moved for a hearing purusant to 18 U.S.C., Section 3504, and specifically requested that: (1) If the Government refuses to affirm or deny Movant's allegation, the subpoena be quashed; or (2) If the government affirms Movant's allegation, the subpoena be quashed; or (3) If the Government denies Movant's allegation. Movant be permitted an opportunity to present evidence that the Government's denial, while no doubt made in good faith, is inaccurate. The Government has neither affirmed nor denied Movant's allega tion, a procedure required by those Circuits which have upheld witness standing under Section 3504, independent of and prior to whatever evidence the witness may wish to introduce. In Re Egan, Third Circuit, en banc, filed May 28, 1971, Slip Opinion, at p. 33; In Re Evans, D.C. Circuit, 46 filed July 23, 1971. 46. The opinion filed in the Evans case was not paginated. This holding appears on the last page of Judge Bazelon's opinion. - 45 - III. CONCLUSION For all of the above stated reasons. Movant respectfully requests that his subpoena be quashed. Respectfully submitted. /s/ Jack J. Levine Jack J. Levine 1427 Walnut Street Philadelphia, Pennsylvania 19102 215-563-1388 Thomas G. Shapiro 73 Tremont Street Boston, Massachusetts 02108 617-227-8420 Attorneys for Movant - 46 -